Ted Fleming suffered a tear in the left biceps tendon when he was arrested for disorderly conduct and public intoxication by five South Bend police officers. His injury occurred as the result of his attempt to avoid being handcuffed during the course of the arrest.
In the resulting suit against the City of South Bend and the five individual officers (hereinafter collectively referred to as the City), a jury awarded Ted Fleming $15,000 for personal injuries and also awarded Jeanette Fleming, his wife, $5,000 for loss of services of her husband.
The City argues on appeal that the trial court erred when it overruled the City’s motion for judgment on the evidence1 and submitted the case to the jury on each of the four theories relied upon by Fleming:
(1) false arrest;
(2) excessive force in making the arrest;
(3) assault and battery; and
(4) negligence.
For the reasons which follow it is unnecessary to address the other issues raised by the City.
The evidence of Ted Fleming’s conduct during the time just preceding his arrest was without conflict. When the police officers first arrived at the Fleming residence, they found no one- outside, so they approached the house and knocked at the front door. Upon speaking to Fleming, they inquired about the disturbance which had occurred when Jeanette Fleming had fallen from the second floor of the house. Fleming, however, refused to answer any questions. Instead, he came out onto the porch and in a loud voice ordered the police to leave his property. When they did not, but instead persisted in their inquiries, he began shouting obscenities at them. The police then tried to persuade Fleming to “settle down” and to speak in a tone of voice not audible to neighbors who were in the vicinity. Their efforts proved futile and the arrest followed.
Proof of the absence of probable cause was essential to Fleming’s action for false arrest. See: Mitchell v. Drake (1977), Ind.App., 360 N.E.2d 195, at 198-199; Banish v. Locks (CA 7, 1969), 414 F.2d 638, at 640-642. Yet the uncontradicted evidence detailed above plainly established that the police had probable cause to arrest Fleming for violating the disorderly conduct statute:
*1077“Whoever shall act in a loud, boisterous or disorderly manner so as to disturb the peace and quiet of any neighborhood or family, by loud or unusual noise, or by tumultuous or offensive behavior, threatening, traducing, quarreling, challenging to fight or fighting, shall be deemed guilty of disorderly conduct, and upon conviction, shall be fined in any sum not exceeding five hundred dollars [$500] to which may be added imprisonment for not to exceed one hundred eighty [180] days.” IC 1971, 35-27-2-1 (Burns Code Ed., 1975). See: Whited v. State (1971), 256 Ind. 386, 269 N.E.2d 149; Stults v. State (1975), 166 Ind.App. 461, 336 N.E.2d 669.
Consequently, the issue of false arrest should not have gone to the jury, for any verdict in favor of the Flemings on that theory would be clearly erroneous as contrary to the evidence. TR. 50(A). Therefore, the trial court erred when it refused to grant appellants’ motion as to that claim.
For a like reason the court erred when it submitted the case to the jury on the theory of negligence. Nowhere in the record is there any evidence that the acts of the police officers in placing Fleming in physical custody were anything but intentional. Rather, the evidence established beyond question that the officers engaged in a cooperative effort to physically subdue Fleming when he resisted their attempt to arrest him.
A police officer in the lawful discharge of his duties is privileged to use only that force which is reasonable and necessary to effect an arrest. Plummer v. State (1893), 135 Ind. 308, 34 N.E. 968; Bonahoon v. State (1931), 203 Ind. 51, 178 N.E. 570; Birtsas v. State (1973), 156 Ind.App. 587, 297 N.E.2d 864; IC 1971, 35-1-19-1 (Burns 1979 Repl.). If he uses unnecessary force his conduct is no longer privileged and he is answerable for an assault and battery. Plummer v. State, supra; Gross v. State (1917), 186 Ind. 581, 117 N.E. 562. In this context, any reference to the doctrine of negligence is superfluous, for the use of the term “negligence” tends to characterize the state of mind of the actor. Cf.: Cohen et al. d/b/a Hoosier P & L Co. v. Peoples (1966), 140 Ind.App. 353, 220 N.E.2d 665. The issue is whether under the circumstances the force used was excessive. If it was, the assault and battery was not privileged. On the other hand, if the force used was reasonable and was incident to a lawful arrest, it was privileged.
The essence of Fleming’s complaint was that the arresting officers unnecessarily and intentionally injured him in the course of the arrest. Consequently, the instructions on negligence could only confuse and mislead the jury by apparently permitting a finding against the officers for mere inadvertence in causing Fleming’s injury.
Because the court below submitted the case to the jury on two theories upon which they could not properly find for Fleming, the judgment below must be reversed. As stated in New York Central Railroad Co. v. Knoll (1965), 140 Ind.App. 264, at 266, 204 N.E.2d 220, at 222:
“In considering the effect of an erroneous instruction, we must assume that the error influenced the result, unless it appears from the evidence, or by some part of the record, such error did not affect the results, and that the verdict under proper instructions could not have been different. [Citations omitted.]”
The record contains nothing which would lead to a conclusion that the jury’s verdict was unaffected by the instructions on false arrest and negligence. Accordingly, the case must be remanded for retrial on one theory: the use of excessive force in making a lawful arrest.
Reversed and remanded.
GARRARD, P. J., concurs. STATON, J., dissents with opinion.. Ind. Rules of Procedure, Trial Rule 50(A).